In 1957, in Bolam v Friern Hospital Management Committee, Mr Justice McNair set out the standard of care for doctors in English law. A doctor is not negligent if he acted in accordance with “a practice accepted as proper by a responsible body of medical men skilled in that particular art.”
Custom and Practice
In British employment law, “sometimes things that are not written down can become part of an employment contract through ‘custom and practice’,” according to Acas, the Advisory, Conciliation and Arbitration Service. Such a practice must be reasonable, certain and “notorious.” Acas explains notorious as “generally well-known in the business or industry, usually over a long period of time.”
Within the Laws
On 24 September 2022, in a women’s one-day international between England and India at Lord’s, the Indian bowler Deepti Sharma ran out England’s Charlie Dean, who was backing up out of her ground at the non-striker’s end. MCC said the dismissal “was properly officiated and should not be considered as anything more.”
The England cricketer Sam Billings said: “Well within the laws but not in the spirit.”
Character or Appearance
In a conservation area, a planning authority must pay “special attention” to “the desirability of preserving or enhancing the character or appearance of that area.” The rule is in section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
The Act does not define the character of an area.
Guided Only by Precedent
On 9 January 2019, during the Brexit debates, the Speaker of the House of Commons, John Bercow, chose an amendment tabled by the Conservative MP Dominic Grieve to be put to the House. According to TheJournal.ie, he did so “against the advice of his own clerks.” Iain Duncan Smith said: “I was always told categorically that precedent says it is not possible.”
Bercow replied: “If we were guided only by precedent, manifestly nothing in our procedures would ever change.”
Lex Non Scripta
In his Commentaries on the Laws of England, William Blackstone divided English law into two kinds: “the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law.”
Flashing Headlights
Rule 110 of the Highway Code says: “Only flash your headlights to let other road users know that you are there.” Rule 111 adds: “Never assume that flashing headlights is a signal inviting you to proceed.”
British drivers flash their headlights to let another driver out of a junction all the same. What Car? magazine calls it one of the most common unwritten rules, which drivers are “expected to do by their fellow motorists.” In 1973, an MP asked the government to introduce an official system of flashing for give-way purposes. The minister replied: “No, Sir.”
The Man on the Clapham Omnibus
English law often judges conduct by the standard of the reasonable person. In 1903, in McQuire v Western Morning News, Collins MR, the Master of the Rolls, referred to “the ordinary reasonable man, ‘the man on the Clapham omnibus,’ as Lord Bowen phrased it.” This is reported to be the phrase’s first use in a judgment.
The phrase has passed into everyday English for the view of an ordinary, sensible person.
Jeeves Disapproves
In P. G. Wodehouse’s stories, friction between the valet Jeeves and his employer, Bertie Wooster, usually begins with a new item Bertie is excited about, such as bright purple socks, a white mess jacket or a garish vase. Jeeves’s disapproval shows as a period of coolness between them.
Bertie calls Jeeves’s opposition “hidebound and reactionary.” Usually Jeeves finds a way to help Bertie with a problem, and Bertie agrees to give away the item Jeeves disapproves of.
Pairing
In the House of Commons, an MP who cannot attend a vote can be paired with an opponent, who agrees not to vote either. The arrangement is not a rule of the House. It is an agreement between members.
In July 2018, Jo Swinson, on maternity leave, was paired with Brandon Lewis. Lewis voted anyway in divisions on the Trade Bill. Reports said the Chief Whip, Julian Smith, had asked five Conservative MPs to break their pairs, and Lewis was the only one who did. Lewis and Smith both apologized. Prime Minister Theresa May called it “an honest mistake made by the whips in fast-moving circumstances.” Swinson rejected that explanation.